Secretary of Labor v. Consol Pennsylvania Coal Company, LLC

Plain-English summary

A contractor miner was crushed between multi-ton machines, could not move or feel one leg, developed abdominal swelling suggesting internal bleeding, and was evacuated by Life Flight. Consol waited roughly two hours after the accident to notify MSHA. The Commission unanimously held that section 50.10(b) required notice within 15 minutes because a reasonable person, considering all information available immediately after the accident and resolving doubt in favor of reporting, would recognize a reasonable potential for death. Later medical outcomes did not control that prompt, on-scene judgment. The Commission also held that the Mine Act's $5,000 statutory minimum bound Commission judges and affirmed the violation and penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 50.10(b)
• Outcome: The reporting violation and $5,000 penalty were affirmed.
• Key point: Whether an injury has a reasonable potential to cause death is judged from the totality of circumstances known when the reporting decision must be made, not through hindsight after medical treatment.
• Penalty rule: The minimum penalty in 30 U.S.C. § 820(a)(2) applies to the Commission's de novo assessment as well as the Secretary's proposal.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004 1710

SECRETARY
OF LABOR,                            :

MINE
SAFETY AND HEALTH                    :

ADMINISTRATION
(MSHA)                     :

:

v.                                              
:         Docket No. PENN 2014-816

:

CONSOL
PENNSYLVANIA COAL                        :

COMPANY,
LLC                                          :

BEFORE:
Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners

DECISION

BY
THE COMMISSION:

This
case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act” or “Act”). Consol Pennsylvania Coal Company, LLC
(“Consol”) appeals an Administrative Law Judge’s decision upholding a citation issued
to it by the Department of Labor’s Mine Safety and Health Administration
(“MSHA”). 39 FMSHRC 1279 (June 2017) (ALJ). The citation alleges a violation of
30 C.F.R. § 50.10(b) [1]
for Consol’s failure to immediately contact MSHA after learning that a miner
had sustained an injury that had “a reasonable potential to cause death.”

We
conclude that substantial evidence supports the Judge’s finding that Consol had a duty to contact MSHA immediately
after the accident.
We also conclude that the Judge did not err in his penalty determination. Accordingly, we
affirm the finding of a violation and the assessed penalty.

I.                   

Factual and
Procedural Background

A.     Factual Summary

This case arose from an injury to a
miner at a large underground coal mine in Pennsylvania. In August 2013, miner
Robert Stern, an employee of GMS Mine Repair and a contractor at the mine, was
helping scoop operator Daniel Greathouse free a scoop weighing 5-10 tons which
had become stuck on a 5-ton rail car. [2]
At approximately 3:15 a.m., Stern stepped between the two machines to assess
the problem when the rail car suddenly became dislodged. Due to slack in the
rail car’s chain, it drifted back towards Stern, crushing him against the scoop
bucket. Greathouse immediately reversed the scoop, moving it forward, and Stern
fell to the ground.

The mine section
foreman, John McDonald, and miner Colby Watson, who were working about 900 feet
away, arrived on the scene within three to four minutes of being notified of
the accident. When McDonald arrived, Stern was conscious and lying on his side.
Stern said that he had been pinched and that he was in a lot of pain. He could
not move his legs and could only feel a pinch in one leg. When Stern’s legs
were moved, he screamed in extreme pain.

McDonald immediately
got on the radio and urged Consol Fire Boss and certified emergency medical
technician (“EMT”) Shannon Smith to get to the scene right away because there
was “a man crushed.” Tr. 165. He instructed Watson to get a gurney and the EMT
kits. McDonald then called the Bunker to request that an ambulance be called
and to have haulage cleared so that Stern could leave the mine quickly. As they
removed Stern from the mine, he instructed the Bunker to call Life Flight, an emergency
helicopter service. Shift Foreman Donny Tomlin, who was in a different part of
the mine and one of Consol’s employees responsible for notifying MSHA of
reportable accidents, was also notified of the incident over the radio.

Within 10
minutes of receiving McDonald’s call over the radio, EMT Smith, along with
fellow Fire Boss Donald Wolfe, arrived on the scene. Smith noticed that Stern’s
leg was bent awkwardly, as if it was broken, and he could not move or feel
anything in one leg. Wolfe applied a cervical spine brace to Stern’s neck
to hold it straight in case there was a spinal injury. There were abrasions and
bruising on the right side of Stern’s waist and hip area, as well as a small
amount of blood.  

As they were leaving
the mine with Stern, Smith and McDonald noticed that Stern’s abdomen was swollen
or distended causing them to become concerned about internal bleeding. Stern
also stated that it felt like something was coming out of his penis. Smith
checked Stern’s genitalia but did not see anything wrong. Smith performed an
assessment on Stern called DCAPBTLS, in which he checked for deformities,
contusions, abrasions, punctures, bruising/burns, tenderness, lacerations, and
swelling. Upon completion of the assessment, Smith testified that he knew that
“we had to get Stern out of the mine . . . fairly quickly.” Tr. 183. As they
were removing Stern, Smith called the Bunker to have Life Flight waiting. Smith
and McDonald testified that internal bleeding can cause death. Tr. 179-80, 225.

Stern asked
Smith to tell his wife and family that he loved them if something happened to
him. Smith checked Stern’s pulse and determined it was not elevated. It took
approximately 40-45 minutes to get Stern out of the mine from the time of the
accident. When Smith turned Stern over to paramedics, he gave them his notes on
what had occurred.

Meanwhile, Eric
Cecil, who was working in the Bunker, called Mine Supervisor Michael Tennant at
home at about 3:30-3:45 a.m. to notify him about the accident and that EMTs
were on the way. Tennant, who is also responsible for notifying MSHA of
accidents, immediately called his boss Eric Shuble, the mine general superintendent,
to inform him of the accident. Tennant then headed to the mine. While en route,
Tennant received a second call from the Bunker, in which additional details of
the accident were provided, including the fact that Life Flight had been
called. [3]
He arrived at the mine at around 4:50 a.m., roughly 20 minutes after Stern had
left for the hospital. Although Tennant, a licensed EMT, did not drive to the mine
every time there was an accident, he chose to on this particular occasion
because he stated that “an employee [had been] pinched between two large pieces
of equipment.” Tr.
243, 268.

At 5:09 a.m.,
roughly two hours after the accident had occurred, Tennant called MSHA and the
Pennsylvania Department of Environmental Protection to report the accident. 

According to the
MSHA Escalation Report, Tennant notified MSHA of the accident at 5:09 a.m. MSHA
Inspector Thomas Bochna learned of the accident at about 5:30 a.m., shortly
after arriving to work. Bochna’s investigation revealed that the accident
occurred at about 3:15 a.m. The report also described the injuries as
“unknown.” Tr.
53; Ex. GX-3.

Bochna arrived
at the mine at 7:00 a.m. the same day to begin an investigation. He proceeded
to interview a number of Consol and GMS employees who were present during or
immediately after the accident. Bochna interviewed Stern at the Health South
Rehab Facility on September 4, 2013. He did not speak with any medical
personnel who had treated Stern on the day of the accident or check with the
hospital regarding Stern’s injuries or condition. Roy Cumberledge, GMS
Coordinator for the mine, told Bochna that a doctor at the hospital had opined
that Stern’s bleeding would stop on its own. Bochna did not ask anyone if they
thought Stern’s injuries had a reasonable potential to cause death nor did he
ask about Stern’s vital signs. According to statements by witnesses at the
hospital, Stern suffered a broken pelvis bone and some internal bleeding that
stopped on its own before surgery. He underwent surgery at about 1:00 p.m. to
repair his pelvis.

A company-generated
handout provided during the operator’s safety talk following the accident described
Stern’s accident as having “a high potential for fatal accident.” Ex. GX-10. Similarly, an
internal Consol Report of Personal Injury (RPI) rated Stern’s accident as
having a fatal potential of 5 out of 5 rating, with 5 having the highest
potential of fatality.

Upon completion of his investigation and
43 days after the incident, Bochna issued a citation for Consol’s failure to
notify MSHA immediately of the accident as required by 30 C.F.R § 50.10(b). Consol
contested the citation.

B.      Judge’s Decision

A Commission
Administrative Law Judge affirmed the violation. He found that “reasonable
potential to cause death” in section 50.10(b) is a clear and unambiguous
standard. He determined that a “totality of the circumstances” test should be
used when analyzing the reporting requirement, and that it is reasonable that
the Secretary consider the circumstances that resulted in an injury. 39 FMSHRC
at 1294-95.

In considering
the “totality of the circumstances,” the Judge determined that when considering
“mental and physical signs and symptoms, this Court has given much more
probative weight to the evidence of injury available at the scene of the
accident and at the time of the accident and immediately thereafter .” Id .
at 1295 (emphasis in original). He opined that, when assessing the propriety of
the operator’s section 50.10(b) determination, less weight is given to medical
information gathered at the hospital and thereafter. Guided by Commission
precedent, the Judge reasoned that “the need for a prompt determination
is inherent in section 50.10 and that permitting operators to wait for a
medical or clinical opinion would frustrate the immediate reporting of
accidents.” Id .

The Judge found
that given the protective purpose of the Act, the applicable standard, and the
totality of the circumstances, a prudent operator, knowledgeable of the
industry, should have known that Stern’s injuries had a reasonable potential to
cause death. The Judge identified specifically that Stern was crushed between
two multi-ton pieces of equipment, had abdominal swelling and severe pain, felt
a bizarre sensation of something coming out of his genitals, had an oddly bent
leg, inability to move his legs properly, visible abrasions and some blood
loss, and made a dying proclamation. The Judge found these were signs and symptoms
indicative of a potentially fatal injury. He also concluded that Consol’s
decision to call Life Flight was made because of justifiable concern that Stern
might have internal bleeding, which could be life threatening. Id . at
1292-98.

The Judge
rejected Consol’s fair notice argument, reasoning that the circumstances
presented here demanded that a reasonably prudent person would believe that
Stern’s condition had the potential to cause death. Id . at 1298-99.

For
the same reasons, the Judge affirmed the Secretary’s assessment of moderate
negligence. He found that the available signs and symptoms indicated that
Consol knew or should have known that an accident occurred that had a
reasonable potential to cause death. Although he acknowledged that Consol
reacted quickly and efficiently to help Stern and that it did eventually alert
MSHA, the Judge did not find that these sufficiently mitigated its negligence. After
considering the six statutory penalty criteria found at 30 U.S.C. § 820(i), the
Judge also determined that the Secretary’s proposed statutory minimum penalty
of $5,000 was appropriate. Id . at 1298-1300.

II.                

Disposition

Section 50.10(b)
provides in pertinent part that an “ operator shall
immediately contact MSHA at once without delay and within 15 minutes . . . once
the operator knows or should know that an accident has occurred involving . . .
(b)  [a]n injury of an individual at
the mine which has a reasonable potential to cause death.” 30
C.F.R. § 50.10(b) (emphasis
added). The Commission has held that section 50.10 is triggered by the
occurrence of an “accident,” as defined in 30 C.F.R. § 50.2(h). Cougar Coal
Co ., 25 FMSHRC 513, 520 (Sept. 2003). [4]

The Mine Act and
MSHA regulations do not define “reasonable potential to cause death,” and the Commission
has not found it necessary to do so. Signal Peak Energy, LLC , 37 FMSHRC
470, 474 (Mar. 2015). [5]
However, the Commission has held that “an operator, in determining whether it
is required to notify MSHA under 30 C.F.R. § 50.10, must resolve any reasonable
doubt in favor of notification.” Id. at 477.  

The Commission
has also held that when determining whether a generally worded standard is
intended to apply to a specific situation, the evidence must be evaluated under
the “reasonably prudent person” test. Ideal Cement Co ., 12 FMSHRC 2409,
2415 (Nov. 1990) (“given the broad wording of this standard
intended to be applied to myriad factual contexts, . . . it is appropriate to
evaluate the evidence in light of what a “reasonably prudent person, familiar
with the mining industry and the protective purpose of the standard, would have
provided in order to meet the protection intended by the standard.”) ; Quinland Coals,
Inc .,
9 FMSHRC 1614, 1617-18 (Sept. 1987); s ee also Emergency Mine Evacuation,
71 Fed. Reg. 71,430, 71,433-34 (Dec. 8, 2006) (“In using the ‘reasonable
potential to cause death’” basis for injuries and entrapments, the MINER Act [6] and the
final rule retain an element of judgment . . . . [T]he operator’s decision as
to what constitutes a ‘reasonable potential to cause death’. . . is based on
what a reasonable person would discern under the circumstances.”) (internal
citations omitted).

Therefore, consistent
with our holding in Signal Peak , when assessing the merits of a
violation under section 50.10(b), the Commission employs a reasonable person
standard, resolving reasonable doubt in favor of notification. 39 FMSHRC at
474, 477.

A.       “Totality
of the Circumstances”

Consol
argues that the Judge incorrectly applied a “totality of the circumstances”
test, maintaining that the Commission expressly rejected such test in Signal
Peak , supra . We disagree. The operator erroneously construes the
Commission’s declining to
further define the term “reasonable potential to cause death” in Signal Peak
as a rejection of the principle that the “totality of the circumstances” must
be considered when assessing a violation under section 50.10(b). See Signal
Peak , 37 FMSHRC at 474.

On
the contrary, we have held that “[t]he immediateness of notification
under section 50.10 must be evaluated on a case-by-case basis, taking into
account . . . all relevant variables affecting reaction and reporting .” Wolf Run Mining Co ., 35 FMSHRC 3512, 3517
(Dec. 2013), quoting Consolidation Coal Co ., 11 FMSHRC
1935, 1938 (Oct. 1989) (emphasis added) . Given
the inability to acquire quickly a clinical diagnosis and the need for prompt
reporting, readily available information such as the nature of the accident and
any observable indicators of trauma are relevant and proper for consideration
in assessing whether an injury is reportable. Signal
Peak , 37 FMSHRC at 476 .

The
phrase “totality of the circumstances” describes the scope of the available evidence
considered when making a section 50.10(b) determination. As the Judge correctly
noted, the scope of the relevant evidence available to assist for purposes of
section 50.10(b) generally will consist of the evidence available at the scene
of the accident, at the time of the accident, and immediately following the
accident. 39 FMSHRC at 1295. While the record will often contain subsequent
relevant information from medical professionals, this information will likely not
materialize until the time to make a decision to notify MSHA has already
passed. Therefore, it is less probative in a section 50.10(b) analysis.

Here,
t he Judge considered the totality of the relevant evidence
available to Consol management during the period immediately surrounding Stern’s
injury. Specifically, he reviewed the signs and symptoms of injury, [7] such as whether Stern was conscious and alert, his
complaints of pain, apparent physical abnormalities, and the cause of Stern’s
injury. The Judge also considered the response Consol deemed necessary to
insure Stern’s health and safety. See Cougar Coal , 25 FMSHRC at 520
(considering foreman’s performance of CPR on unconscious miner who became
conscious and alert shortly thereafter).

Accordingly,
we
conclude that the Judge’s analysis was proper
and entirely consistent with Commission precedent.

B.      “Reasonable
Potential to Cause Death”

Consol primarily bases its defense
upon the definition of the term “accident” in 30 C.F.R. § 50.2(h). In
particular, Consol focuses upon the key phrase – the definition of an “ injury to an individual at a  mine  which
has a reasonable potential to cause death.” 30
C.F.R. § 50.2(h)(2).
In turn, section
50.10(b) uses that terminology in identifying accidents an operator must report
immediately.

Consol asserts that the
definition of an immediately reportable accident necessitates a fact-based analysis
of whether the injuries to the injured miner as a matter of medical fact caused
a reasonable potential for death. Applying this view, Consol asserts the
Secretary must prove by a preponderance of evidence that the injured miner
actually faced a reasonable potential for death. [8]

Consol then contends that
the evidence in this case shows that there was not an actual reasonable potential
for death, and the Secretary did not introduce any evidence proving such
potential. Consol asserts that its employees never thought there was a
potential for death, that the internal bleeding which did occur stopped on its
own, and that the hospital waited more than seven hours to perform surgery to
repair the miner’s broken body. Thus, Consol argues that the evidence does not
demonstrate that Stern’s injuries resulted in a reasonable potential for death.

The fundamental problem with
Consol’s defense is that it misinterprets the regulation. Consol’s error lies
in the perspective from which it evaluates the miner’s injuries. The
notification requirement does not, and cannot, rest upon a post-medical treatment
analysis of the likelihood of death from the injuries. The regulation does not
create grounds for a guessing game regarding whether an injury, as a matter of
post-hoc analysis, created any degree of danger to the miner’s life. See
Cougar Coal , 25 FMSHRC at 521 (the decision to call MSHA “cannot be made
upon the basis of clinical or hypertechnical opinions as to a miner’s chance of
survival.”).

The decision whether to call
must be made immediately and often by persons with little medical expertise. The
Commission has held that, “[o] nce a person with sufficient authority
to call learns of an event injuring a miner, the clock begins to run on the
period for evaluation of whether the injury presents a reasonable potential to
cause death and a determination of whether a call is required.” Signal Peak ,
37 FMSHRC at 476.  The regulation, therefore, does not look to an
opinion of a medically qualified expert.

A person with
sufficient authority to call must make the decision whether to call based upon
whether a reasonable person with the information known by him/her would have
considered the injuries as creating a reasonable potential for death. Of
course, the primary information is the nature of the injury and the miner’s
condition. However, as noted above, relevant information includes the totality
of circumstances including the nature of the event causing the injury. The
outcome determinative inquiry in this case is whether responsible Consol
employees had information that would lead a reasonable person to conclude there
was a reasonable potential for death based upon the nature of the injury and
the totality of the circumstances. The Judge found such information existed. We
agree .

In the instant
matter, Section Foreman McDonald, who had EMT training, and EMT Smith were
among the earliest persons to arrive on the scene of the accident. They immediately
determined that Stern had been pinned between two large machines, weighing
between 5 and 10 tons. He was lying on the ground in extreme pain and had
complained that it felt as if “his guts” were coming out of his genitals. There
was swelling in Stern’s abdomen, which indicated possible internal bleeding,
and he could not move or feel one of his legs, which suggested a possible spinal
injury. [9]
See Signal Peak , 37 FMSHRC at 475-76
(concluding that the miner’s “initial condition presented a sufficient
possibility of internal injury and spinal damage that a reasonable person
should have recognized that an injury with a reasonable potential to cause
death had occurred.”). Shortly after the accident, much of this information was
also relayed from the Bunker to Mine Supervisor Michael Tennant who is a
licensed EMT as well. Tr. 232-34.

Obviously, Stern
had suffered a host of extremely painful and very serious injuries. There was
an odd bend to his leg as if it were broken, and there were abrasions and
bruising on the right side of his waist and hip area with a small amount of
blood. Stern also asked Smith to tell his wife and family that he loved them if
something were to happen to him, an indication that Stern was in extreme pain
and believed that he might die. 39 FMSHRC at 1296-99. All of these symptoms
reveal severe injuries. Perhaps most importantly and certainly outcome
determinative here, when Smith and McDonald were taking Stern out of the mine, they
became aware of possible internal bleeding, knew such bleeding could cause
death, and asked for a Life Flight due to concern over the nature and severity
of Stern’s injuries, including the circumstances which caused them.

Smith testified
that he had called Life Flight because he wanted to err on the side of caution regarding
internal bleeding, which he acknowledged could be fatal. 39 FMSHRC at 1297. McDonald
candidly testified that when he observed Stern’s abdomen, he “got nervous”
because he knew there could be internal bleeding, which he knew had a
“reasonable potential to cause death.” Tr. 225, 229. Tennant also agreed that Stern’s
accident had a high potential to be fatal. Tr. 247. Smith further stated that
this was the first time Life Flight had been called since he began working at
the mine.

In light of the
knowledge and training possessed by Tennant, McDonald, and Smith, we conclude
that someone with sufficient authority at Consol was aware of Stern’s injury-causing
event. These employees surely realized from their training that, when a miner
is pinched between major pieces of equipment and then suffers from a distended
and hardened abdomen, there is a high potential if not a likelihood of internal
bleeding. In turn, nearly every knowledgeable witness testified to the obvious
– namely, internal bleeding is a potential cause of death. [10] Under these
circumstances, the evidence overwhelmingly demonstrates that a reasonable
person possessing the available information would have concluded there was a
reasonable potential for death.

Testimony
that Stern
was conscious, alert, talking, and presented no elevated pulse or obvious signs
of breathing problems does not alter this conclusion. The Commission has previously
rejected the assertion that because a miner is conscious and alert following an
accident, management could reasonably conclude that there was no potential for
death. Cougar Coal , 25 FMSHRC at 520; s ee also Signal Peak , 37
FMSHRC at 476 (noting that while the miner presented some stable vital signs,
all vitals were not taken, thus evaluation was not exhaustive or conclusive and
did not establish that the miner’s injuries posed no reasonable potential for
death). Indeed, Consol’s limited assessment of Stern’s vital signs could not
readily determine the extent of any internal bleeding, its cause, or the
potential for additional tears or damage to internal organs or other factors. Under
these circumstances, knowing that internal bleeding may cause death, any
reasonable person could not conclude otherwise than that a potential for death
existed. [11]

Consol also argues
that the Judge gave undue weight to the cause of injury, because the regulation is injury-based, not incident-based. However,
the Commission has repeatedly held that the
nature of the accident is relevant in determining whether an injury is reportable under
section 50.10. Signal Peak , 37 FMSHRC at 475-76 (holding that a
miner being propelled 50-80 feet due to blast and having a significant back
protrusion indicated a reasonable potential to cause death); Cougar Coal ,
25 FMSHRC at 520-21 (holding that an electric shock, 18-foot fall, and head injury had a “per se”
reasonable potential for death);  see also Mainline Rock &
Ballast, Inc. ,   693 F.3d 1181, 1189 (10th Cir. 2012) (stating
that an operator should have been alerted to the potential for death by the
fact that the miner was pulled through a roller) .

Consol acknowledged the high danger of a pinch point injury. Foreman
McDonald testified that red zone training is frequently given at the mine not
only because of the tight areas and mobile equipment there, but because
red zone violations are considered particularly dangerous. Tr. 224. Consol even used the
accident involving Stern as an example in its Pinch Point/Red Zones training
handout, which specifically noted that this particular accident “had a high
potential for a fatal accident.” Ex. GX-10; Tr. 212-14. Similarly, in Consol’s internal
RPI, which discusses incidents at all company mines and assigns them fatal ratings
between 1 and 5, Stern’s mechanism of injury was rated as having a fatal
potential of 5 out of 5. Exs. GX-14, RX-5; Tr. 260-67.

Consol also argues that Bochna performed an inadequate
investigation because he failed to acquire medical records and statements from
medical personnel to support the conclusion that Stern’s injuries had a
reasonable potential to cause death. However, as we emphasized above, section
50.10 requires operators to notify MSHA “immediately . . . at once without
delay and within 15 minutes” once an operator knows that an accident has
occurred. 30 C.F.R. § 50.10 . Therefore, “[g]iven
the need for a prompt determination inherent
in section 50.10 . . . permitting operators to wait for a medical or
clinical opinion would ‘frustrate the immediate reporting of near fatal
accidents.’” Signal Peak , 37 FMSHRC at 476 (citation omitted) ; see also 71 Fed. Reg. 71,433-71,434
(“the operator’s decision as to what constitutes a ‘reasonable potential to
cause death’ ‘cannot be made upon the basis of clinical or hypertechnical
opinions as to a miner’s chance of survival’. . . . The decision to call MSHA
must be made in a matter of minutes after a serious accident.”) (internal
citation omitted) . [12]

Lastly, Consol
argues that it lacked fair notice of how the regulation would be applied
because neither the Commission nor MSHA has defined “reasonable potential to
cause death.” However, the Commission has held that in interpreting and
applying broadly worded standards, the appropriate test is not whether the
operator had explicit prior notice of a specific prohibition or requirement,
but whether a reasonably prudent person familiar with the mining industry and
the protective purposes of the standard would have recognized the specific
prohibition or requirement of the standard. Ideal Cement Co ., 12 FMSHRC
at 2416.

Under the
circumstances presented in this case, a reasonably prudent person familiar with
the protective purpose of section 50.10(b), would have recognized that a miner who
had been pinned between two multi-ton machines and who suffered from Stern’s
symptoms had sustained an injury with a “reasonable potential to cause death,”
and that MSHA should have been immediately notified. The Judge’s application of
the standard is in harmony with the Commission’s decisions in Signal Peak
and Cougar Coal . Therefore,
we reject
Consol’s notice argument.

Accordingly, we
conclude that based on the substantial evidence presented in this case, a
reasonably prudent miner, familiar with the mining industry and the protective
purpose of section 50.10(b), would have concluded that Stern’s injuries had a “reasonable
potential to cause death” and would have immediately reported the injuries to
MSHA.

Penalty

Finally, Consol
argues that the Judge erred in failing to consider a penalty lower than the
statutory minimum of $5,000 because the Commission assesses penalties de novo
and is not bound by section 110(a)(2) of the Act. Section 110(a)(2) states that an operator “who fails to
provide timely notification to the Secretary as required under section 103
of this [Act] (relating to the 15 minute requirement) shall be assessed a civil
penalty by the Secretary of not less than $5,000 and not more than $60,000.” [13] 30 U.S.C. § 820(a)(2). [14] The operator
contends that because this section refers to the Secretary’s penalty
assessment, it does not bind Commission judges. We reject this contention.  

The
Commission has determined that an assessment of penalty for a non-flagrant
violation of section 50.10(b) is governed by section 110(a)(2) of the Act,
which, as noted, imposes statutory minimum and maximum amounts. 30 U.S.C. §
820(a)(2); Signal Peak , 37 FMSHRC at 484 n.22. Thus, the Judge here was simply unable to consider a penalty
less than the minimum imposed by Congress when it passed the Miner Act.

We base our
conclusion in large part on the Miner Act’s legislative history. In briefly
discussing the section that amends the statutory reporting requirements, the
Senate Report states:

Section 5
requires MSHA notification within 15 minutes for a subset of situations which
are currently defined as accidents under regulation [30 C.F.R. § 50.2(h)]. . .
. [It] is the intent of the committee that the minimum fine of $5,000 be
assessed only for those accidents described in 30 CFR 50.2(h)(1), (2) and (3)
[which include an injury to an individual at a mine which has a reasonable
potential to cause death]. . . .

. . .

Section 5–Prompt
Incident Notification. This provision codifies the recent MSHA emergency
regulation which requires that operators make notification of all
incidents/accidents which pose a reasonable risk of death within 15 minutes of
when the operator realizes an accident has occurred. It would fix a minimum
civil penalty of $5,000, up to $60,000 (which is the current maximum) for
failure to do so.

S. Rep. No. 109-365 at 9, 13 (2006)
(emphasis added). This is the extent of the discussion. There is no
reference to the fact that the Secretary proposes penalties and Commission
judges assess them. The Senate Report simply states that a minimum penalty of
$5,000 is to be imposed.  

In addition,
section 110(a)(4) states that “[i]f a court, in making such review, sustains
the order, the court shall apply at least the minimum penalties required under
this subsection [section 110(a)].” 30 U.S.C. § 820(a)(4). A statutory scheme
that permits the Commission to assess any penalty, however minimal, but
requires a reviewing court to impose a penalty of at least $5,000, makes no
sense.

Therefore, because assessment of Consol’s violation
of section 50.10(b) is governed by section 110(a)(2) of the Act, the Judge
properly assessed a penalty of $5,000.

III.

Conclusion

For the reasons
set forth above, we
conclude that substantial evidence supports the Judge’s finding that a
reasonable person, familiar with the mining industry and the protective purpose
of section 50.10(b), would have concluded that Stern’s injuries had a
reasonable potential to cause death and that Consol should have called MSHA immediately
upon learning of the injuries giving rise to such potential. We also conclude
that the Judge properly applied the requirements of section
110(a)(2) of the Act and did not err by imposing the penalty of $5,000 . Accordingly,
the Judge’s decision is affirmed.

/s/ William I.
Althen

William I.
Althen, Acting Chairman

/s/
Mary Lu Jordan

Mary
Lu Jordan, Commissioner

/s/ Michael G.
Young

Michael G.
Young, Commissioner     

/ s/ Robert F.
Cohen, Jr.

Robert F. Cohen,
Jr., Commissioner

[1] 30 C.F.R. §
50.10(b) states: “ The operator shall immediately
contact MSHA at once without delay and within 15 minutes . . . once the
operator knows or should know that an accident has occurred involving . . . (b)  [a]n injury of an individual at the
mine which has a reasonable potential to cause death . . . .”

[2] A scoop is a
type of diesel or battery-operated equipment with a scoop attachment for
cleaning up loose material, for loading mine cars or trucks, and hauling
supplies. Am. Geological Institute, Dictionary of Mining, Mineral, and
Related Terms 484 (2d ed. 1997).

[3] Calls were also
placed to Stern’s wife and to representatives of GMS.  

[4] Section
50.2(h)(2), for purposes of this citation, defines “accident” as “[a]n injury
to an individual at a mine which has a reasonable potential to cause death.” 30
C.F.R. § 50.2(h)(2). The regulation implements section 3(k) of the Act, which
states that “’accident’ includes a mine explosion, mine ignition, mine fire, or
mine inundation, or injury to, or death of, any person.” 30 U.S.C. § 802(k).

[5]
Commissioner Cohen continues to believe, as he stated in Signal Peak , 37
FMSHRC at 474 n.8, that the Commission should adopt a definition for “reasonable
potential to cause death,” and suggests the following definition: “The
reporting requirement of section 50.10(b) is triggered when a miner is injured
in a manner that would cause a reasonably prudent mine operator to consider the
possibility that the injured miner’s life may be in jeopardy. Obviously,
because the extent of an injury is not always immediately apparent, the
totality of the circumstances, including how the injury occurred, should be
considered by the mine operator.” 

[6] Congress
enacted the Mine Improvement and New Emergency Response Act of 2006, Pub. L.
No. 109-236, 120 Stat. 493 (“MINER Act”) in response to fatal accidents at
underground coal mines.

[7] Consol also
characterizes the Judge’s consideration of the “signs and symptoms” of injury
as yet another distinct standard erroneously applied by the Judge. However, the
signs and symptoms of a victim’s injury will be the crux of an analysis used to
determine whether an injury has a “reasonable potential to cause death.” Consequently,
this argument is without merit.

[8]
Consol asserts: “To meet his burden of proof, the Secretary is required to present competent
and conv i ncing evidence that the injury sustained had a reasonable potential to cause death.
30 U.S.C § 8 l 3(j); 30 CFR § 50. 1 0.” PDR
at 10.

[9] Based on MSHA’s
experience and common medical knowledge, some types of “injuries which have a
reasonable potential to cause death” include concussions, cases requiring
cardio-pulmonary resuscitation (CPR), limb amputations, major upper body blunt
force trauma, and cases of intermittent or extended unconsciousness. These
injuries can result from various indicative events, including an irrespirable
atmosphere or ignitable gas, compromised ventilation controls, and roof
instability. 71 Fed. Reg. at 71,434. However, this passage clearly indicates
that this list was not intended to be exhaustive, and was meant to provide a
sample of some injuries that could have a reasonable potential to cause
death, as well as some events that could produce such injuries.

[10] Consol argues
that the Judge failed to address a significant conflict between section 103(j)
of the Act, 30 U.S.C. § 813(j), and 30 C.F.R. § 50.10(b). It
contends that section 103(j), which states that an operator must call MSHA when
it “ realizes ”  an injury has occurred, conflicts with
section 50.10(b), which states that MSHA must be called when an operator “ knows
or should know ”  that an accident has occurred. PDR at
31-32. We need not consider that argument. In this case, there is no doubt that
a reasonable person evaluating the known facts would have found a reasonable
potential for death. The operator knew the requisite information.    

[11]
Although the hardening of Stern’s abdomen could have been the result of other
types of injuries, the symptoms occurred after pinching between large pieces of
equipment. And while the bleed turned out to be non-fatal, this in no way
negates the finding that the nature of Stern’s injuries, as readily observed by
Smith and McDonald, presented a reasonable potential to cause death. Under
this regulation, operators are not expected to know with absolute certainty the
extent of a miner’s injuries because this is simply impossible within the short
window in which they must make the determination. Additionally, as noted above,
the Commission has explicitly emphasized “ that an
operator, in determining whether it is required to notify MSHA under 30
C.F.R. § 50.10, must resolve any reasonable doubt in favor of notification.” Signal
Peak , 37 FMSHRC at 477.

[12] See Consolidation Coal , 11 FMSHRC
at 1938 (finding that section 50.10 “accords operators a reasonable
opportunity for investigation,” but that the investigation “must be carried out
. . . in good faith without delay and in light of the regulation’s command of
prompt, vigorous action”);  see also  71 Fed. Reg. 12,252,
12,260 (Mar. 9, 2006) (noting that “[t]aking too much time to determine
whether . . . an accident occurred” is a common reason for violations
of section 50.10).

[13] In January
2018, the minimum penalty was increased to $5,903 and the maximum penalty was
increased to $70,834 to account for inflation. 30 C.F.R. § 100.4(c); see
also Department of Labor Federal Penalties Inflation Adjustment Act Annual
Adjustments for 2018. 83 Fed. Reg. 7, 15 (Jan. 2018). However, the minimum
penalty in effect at the time of the violation, i.e., $5,000, applies here.

[14] Section 103(j) requires an operator to notify the Secretary
“within 15 minutes of the time at which the operator realizes that . . . an
injury . . . of an individual at the mine which has a reasonable potential to
cause death, has occurred.” 30 U.S.C. § 813(j). This is the same conduct
required by sections 50.10(a), (b), and (c) of the Secretary’s
regulations.